PM Dacian Ciolos, first reaction in phone tapping ordinance scandal: “SRI cannot be a criminal prosecution body EXCEPT in cases that concern national security and terrorism”

Premier Dacian Ciolos stated that the Romanian Intelligence Service (SRI) will be a criminal prosecution body for cases that concern national security and terrorism, exclusively under judicial control, anything else being “groundless interpretation.”

“SRI cannot be a criminal prosecution body EXCEPT in cases that concern national security and terrorism (in line with the SRI law) and ONLY, EXCLUSIVELY UNDER JUDICIAL CONTROL, in the presence of a PROSECUTOR. Anything else is groundless interpretation,” the Premier wrote on Facebook on Sunday, answering a posting that argued that the government’s emergency ordinance on wiretapping allegedly re-established, through its amendments, the Sixth Directorate (criminal investigations) of the former Securitate.

Asked why the legislative act was not open to debate, Ciolos claimed that there was no longer time for that. “We open emergency ordinances to public debate every time possible. In the case of the emergency ordinance on wiretapping there was no longer the physical time, because we would have remained exposed in some cases unless we adopted the government emergency ordinance at the same time the Constitutional Court decision was published in the Official Gazette,” he explained.

The Constitutional Court decision and the government emergency ordinance are yet to be published in the Official Gazette. Government emergency ordinances come into force on the date they are published, provided they are first filed at the Chamber that has to be notified.

After the Constitutional Court declared unconstitutional a Criminal Procedure Code article that regulates technical surveillance during criminal investigation, more specifically the article that stipulates who carries out the surveillance, a government emergency ordinance on wiretapping was drafted and adopted by Government.

According to the emergency ordinance, prosecutors and criminal investigation bodies will only be able to enforce warrants of technical surveillance ordered in criminal cases, using directly and independently the infrastructure of SRI.

Raluca Pruna: ‘ All this criticism that we created who know what branch of Securitate are completely unfounded’

Justice Minister Raluca Pruna says the emergency ordinance on wiretapping passed by the Government on Friday does not curtail personal rights and freedoms, but it makes them more effective, adding that the Romanian Intelligence Service (SRI) has not been granted any power at all that it had not already had.

”Some clarifications are essential again for opinion makers: 1 – Emergency ordinances are pieces of legislation that have the same power as laws. 2 – The government emergency ordinance passed on Friday does not curtail freedom or rights, but, on the contrary, it makes them effective. With just a weak criminal investigation and a weak fight against crime, talks about rights are a theoretical luxury. 3 – SRI has not been granted any power at all that it has not had before the ruling 51/2016 of the Constitutional Court of Romania. Its special criminal investigation powers are exclusively limited to the enforcement of technical surveillance warrants for offences mentioned in Title X in the Criminal Code and terrorism. For all these offences, criminal investigation is exclusively vested with the prosecutors and no one else, police officers, judicial police officers or some other special prosecution body. Romania is no exception in this regard. Those who incorrectly refer to the example of other European Union member states, I suggest they take a look to the European agenda on justice and home affairs,” Pruna said Monday in a Facebook post.

She also mentioned that the emergency ordinance in question is a provisional solution, yet necessary because of the CCR decision that was calling for an overnight solution.

”It does not exclude, but it paves the way for the necessary public debate on what solution the Romanian society would choose. Personally, I find it surreal to see the reactions of former high-ranking dignitaries who knew exactly how things have been going for about ten years now, as they approved of them only to denounce them as never seen before, the reactions of the knights of the fight against institutional corruption or the civil society that also knew but did not find ground to break away all this time. Fear not, because truth always separates the waters. Finally, I am happy that the CCR decision paved the way for seconding judiciary police officers to prosecutorial offices. This is a beginning,” said Pruna.

Justice Minister Raluca Pruna stated on Monday that claims that the emergency ordinance on wiretapping enabled the creation of a branch of Securitate (Romania’s political police during the communist regime) are unfounded and stressed that Romania cannot combat terrorism in an “amateurish” way.

“All this criticism that we created who know what branch of Securitate are completely unfounded. In fact, the SRI [the Romanian Intelligence Service], in matters of national security, title 10 in the Criminal Code, and in matters of terrorism, simply retains the duties it had before the Constitutional Court’s decision. Given that the Court’s decision restricts greatly the definition of ‘criminal investigation body’, to prosecutor or police officer, there is no other solution. I invite everyone who is criticising this ordinance to consider the latest attacks and to ask themselves whether we can combat terrorism in a manner, how shall I call it – amateurish – and the answer is no. I believe that the European and the Romanian agendas make it my obligation as a minister to make such a proposal. I do not have any regrets and I am not sorry we did this,” Justice Minister Raluca Pruna told journalists before participating in the presentation of the Prosecutor General’s annual report.

In regards to the selection procedure for the next Prosecutor General, Pruna stated that the process was “under total control and nobody should worry.” “Soon, Romania will have a good prosecutor general,” the Minister added.

Minister Pruna also announced that the ordinance adopted by the Government amends four other laws: the Criminal Procedure Code, the Law on Judicial Organization, the Law on the organization and functioning of the Directorate for Investigating Organized Crime and Terrorism (DIICOT), as well as the Law on the organization and functioning of the SRI.

All resources of the Technical Service will work to implement the decision by the Constitutional Court (CCR) on phone surveillance and the emergency ordinance adopted last week on this issue, National Anticorruption Directorate (DNA) Chief Prosecutor Laura Codruta Kovesi said on Monday, at the Public Ministry’s activity report on 2015.

She added that the DNA will try to hire the police officers from the structures that previously worked in surveillance.

Kovesi restated that the DNA needs 130 police officers and some 10 million euros to perform the way it did over the past years.

“In the next period, a slow-down in the solving of the files will be perceivable, precisely because our resources will be used to supplement the necessary at the Technical Service,” Kovesi said.

She refused to give a figure of the files in which the CCR decision was already invoked, showing that this would mean to comment cases, evidence under investigation.

“What I could say is that the defender or the persons who were referred to court have sent to court requests by which they ask cancellation of some evidence, based on this CCR decision. (…) Like I said the other week, the DNA cases are not exclusively based on wiretapping. Such evidence were always doubled by other kinds of evidence that were provided during the criminal law suit,” said the DNA head.

Senate Speaker Popescu-Tariceanu: ‘It has to be rejected as unconstitutional’

Senate Speaker Calin Popescu-Tariceanu, co-chair of the Romanian Alliance of Liberals and Democrats (ALDE) says that the recently adopted emergency ordinance on phone surveillance should not be discussed in Parliament, but rejected as unconstitutional.

“The Constitution clearly states, about legislative delegation, that emergency ordinances shall not be passed in relation to constitutional laws and they shall not affect the status of fundamental state intuitions, rights, freedoms and obligations enshrined in the Constitution. So, the ordinance is unconstitutional. That is why it has to be rejected instead of being discussed and Parliament should play its part and come up with a project to pass that will be in line with the ruling of the Constitutional Court ,” Popescu-Tariceanu told a news conference on Monday.

He added that the solution in this case would be the establishment of an independent interception body, as initially provided for in a 2007 national security bill. He explained that this body should be autonomous and operate independently of any other public administration body, subject to Parliament’s control, with a unique and exclusive national power in the field of interception of communications.

Monica Macovei: “CCR has generated significant unpredictability”

MEP Monica Macovei believes that the Constitutional Court decision has blown up many case files and this generates a lot of unpredictability.

“Let’s say the CCR decided correctly: we no longer want SRI doing the wiretapping. In Europe, the methods differ. In Poland, for instance, the intelligence services are used. (…) The problem is the retroactivity. Some cases on which work was done, public funds were spent, are blown up. The judiciary has to be predictable,” Macovei stated.

The former Justice Minister noted that the CCR explanation is pointing out at first that the decision is applied only for the future, but another sentence subsequently appears, which states that the decision is applicable to ongoing cases too. “The moment you say it is applicable to ongoing cases this means that these new rules are applied to the case files sent to court. So every judge will decide whether to take into account the evidence obtained through wiretapping, through surveillance,” Macovei said. The MEP pointed out that it is not normal for the evidence collected at a time when they were constitutional to be removed from the case files.

“If this evidence is removed, the judge will have to decide whether the rest of the evidence is sufficient to sentence the person concerned. Why are we blowing up some cases? Although CCR argues that the law has to be predictable and clear, they’ve generated significant unpredictability. We do not know how these decisions will be solved,” Macovei added.

Teodor Melescanu: CCR decision ensures return to normalcy

Former Foreign Intelligence Service (SIE) Director Teodor Melescanu, currently ALDE Vice President, stated that the CCR decision will “ensure the return to normalcy.”

“For me it is fascinating to see that a CCR decision that does nothing but ensure the return to normalcy for these phone tapping operations, in line with the fundamental principles of human rights, has managed to generate such a discussion. Things are simple: I find it normal for there to be a system through which potential criminals would be subjected to surveillance, including by tapping their phone conversations. Such an institution, which is under the control of the Justice Ministry or the Government, which operates as a provider of services, exists in any country,” Teodor Melescanu stated on Romania TV.

Zegrean: If we had a wiretapping law we wouldn’t be talking based on our imagination

Constitutional Court President Augustin Zegrean claims that if there were a wiretapping law, as most European countries have, there would no longer be talk “based on imagination.”

“If we had a wiretapping law we would no longer be talking based on imagination, we would know that the law says how all of this is done. And this should be made. I hope a law as exists in most European countries will be drafted one day too,” Zegrean stated on Monday on RRA. He pointed out that in its decision the Constitutional Court had European practices in mind.

Former Prime Minister Victor Ponta says about Justice Minister Raluca Pruna that she “is acting like a sinister KGB operative,” after she explained the need for the emergency ordinance on wiretapping, an ordinance adopted last Friday.

“I stayed away from the recent talks, but when I see a Justice Minister in an EU member country thinking and acting like a sinister KGB operative I call on all (still) free citizens in Romania – your fundamental rights are NOT “a theoretical luxury”!!! If we remain silent out of fear we will end up worse than in the 1950s when the Communists (with the same kind of thinking as Madame Pruna or Macovei) ruined this country!!! I ask you not to remain silent this time!!!” Victor Ponta wrote on Facebook.

Former president Traian Basescu: “Is the ordinance constitutional?”

Former president Traian Basescu wrote on Facebook that, according to the Constitution, an emergency ordinance cannot be adopted in the domain of rights and freedoms, and rhetorically asked whether the government emergency ordinance on the shared use of the National Centre for Interception of Communications is constitutional.

“Is the government emergency ordinance on the shared use of the National Centre for Interception of Communications constitutional? I am reading from Romania’s Constitution. (…) I believe lawyers, in criminal cases, will thoroughly exploit the two articles from the Constitution and very likely the damages done to criminal cases by Mr. Iohannis and Ciolos by approving [this] within CSAT and the Government will be significant,” Traian Basescu wrote on Sunday, referring to the ordinance on wiretapping.